Global Acquisitions Network et al v. Bank of America Corporation et al

Filing 116

ORDER GRANTING DEFENDANT JON LEARYS MOTION TO SET ASIDE DEFAULT 104 by Judge Dean D. Pregerson. (lc). Modified on 12/17/2013. (lc).

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 GLOBAL ACQUISITIONS NETWORK, a Wyoming corporation; SHAWN CORNEILLE, an individual, 13 14 15 16 17 18 Plaintiffs, v. BANK OF AMERICA CORPORATION, a Delaware corporation; ORIANA CAPITAL PARTNERS,LLC, a Connecticut limited liability company; et al. Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-08758 DDP (CWx) ORDER GRANTING DEFENDANT JON LEARY’S MOTION TO SET ASIDE DEFAULT [Dkt. No. 104] 19 20 Presently before the Court is Defendant Jon Leary’s motion to 21 set aside entry of default (the “Motion”). For the following 22 reasons, the Motion is GRANTED. 23 24 25 I. Background Plaintiffs Global Acquisitions Network and Shawn Corneille 26 (“Plaintiffs”) filed this action against multiple defendants, 27 alleging breach of contract and related causes of action. (FAC, 28 Docket No. 48.) Following the filing of the First Amended Complaint 1 in March 2013, Defendant Bank of America filed a motion to dismiss 2 the action against them, which the Court granted on June 7, 2013. 3 (Docket No. 60.) Defendant Jon Leary then filed a motion to dismiss 4 based on lack of personal jurisdiction, which the Court denied on 5 July 9, 2013. (Docket No. 68.) Plaintiffs then proceeded to seek 6 entry of default against several defendants in a piecemeal fashion. 7 Default was entered against Leary on August 6, 2013. (Docket No. 8 79.) 9 Leary, proceeding pro se, now seeks to set aside the entry of 10 default. (Docket No. 104.) Leary explains that he attempted to file 11 an answer in early August. (Id.) Leary also alleges that he has 12 bona fide defenses to the allegations in the FAC and that he had 13 little to no involvement in the matters pled therein. (Id.) Leary 14 further contends that Plaintiffs have not been prejudiced by the 15 delay. (Id.) 16 II. Legal Standard 17 Once default has been entered, the defaulting party has the 18 burden of showing that default should be set aside. Cassidy v. 19 Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988). The defaulting party 20 must show that good cause exists for setting aside the default. 21 Fed. R. Civ. Prov. 55(c). In determining whether good cause exists, 22 the court may consider the following factors: (1) whether the 23 defaulting party has a meritorious defense; (2) prejudice to the 24 plaintiff if default is set aside; and (3) the defaulting party’s 25 culpability in allowing default to occur. Mendoza v. Wight Vineyard 26 Mgmt., 783 F.2d 941, 946 (9th Cir. 1986). 27 /// 28 /// 2 1 2 III. Discussion Leary alleges that he had “little to no involvement in the 3 matters as hand.” (Motion, Docket No. 104, p. 2.) While the merits 4 of this assertion remain to be seen, the Court is persuaded that 5 Leary’s argument may have merit. Therefore, a resolution of the 6 case on the merits is preferable to allowing default to stand. 7 Further, the prejudice that Plaintiffs will suffer is minimal. 8 Plaintiffs are still in the process of seeking entry of default 9 and/or default judgment against various other Defendants in this 10 case. With substantial other activity occurring in this case, 11 Plaintiffs will not suffer prejudice, other than actually having to 12 prove their claims against Leary rather than collect by way of 13 default judgment. 14 Leary also offers an excuse for his default because he alleges 15 that he tried to file an answer to Plaintiffs’ FAC in August but 16 was unsuccessful. Because Leary is self-represented and appears to 17 reside in Connecticut, filing documents in the Central District of 18 California and checking whether they have been properly filed may 19 be challenging for Leary. As a result, the Court does not believe 20 that Leary is highly culpable in allowing default to occur. 21 IV. Conclusion 22 For the foregoing reasons, the Court GRANTS the Motion. The 23 entry of default against Leary is set aside. 24 IT IS SO ORDERED. 25 26 27 Dated:December 17, 2013 DEAN D. PREGERSON United States District Judge 28 3

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